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21–829 PDF 2005

S. Hrg. 109–175

IS THE FEDERAL GOVERNMENT DOING ENOUGH

TO SECURE CHEMICAL FACILITIES AND IS

MORE AUTHORITY NEEDED?

HEARING

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JUNE 15, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

ALLISON J. BOYD, Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

HOLLY A. IDELSON, Minority Counsel 

TRINA D. TYRER, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Collins ................................................................................................. 1

Senator Lieberman ........................................................................................... 3

Senator Chafee ................................................................................................. 15

Senator Carper ................................................................................................. 16

Senator Lautenberg .......................................................................................... 19

Senator Akaka .................................................................................................. 23

Prepared statements: 

Senator Voinovich ............................................................................................. 33

Senator Coleman .............................................................................................. 34

WITNESSES 

WEDNESDAY, JUNE 15, 2005

Robert B. Stephan, Acting Under Secretary for Information Analysis and 

Infrastructure Protection, U.S. Department of Homeland Security ................ 5

Thomas P. Dunne, Deputy Assistant Administrator, Office of Solid Waste 

and Emergency Response, U.S. Environmental Protection Agency ................. 8

ALPHABETICAL LIST OF WITNESSES

Dunne, Thomas P.: 

Testimony .......................................................................................................... 8

Prepared statement .......................................................................................... 44

Stephan, Robert B.: 

Testimony .......................................................................................................... 5

Prepared statement .......................................................................................... 35

APPENDIX 

Questions and responses for the Record from: 

Mr. Stephan ...................................................................................................... 49

Mr. Dunne ......................................................................................................... 58

(1)

IS THE FEDERAL GOVERNMENT DOING 

ENOUGH TO SECURE CHEMICAL FACILITIES 

AND IS MORE AUTHORITY NEEDED? 

WEDNESDAY, JUNE 15, 2005

U.S. SENATE, 

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:24 a.m., in room 

562, Dirksen Senate Office Building, Hon. Susan M. Collins, Chairman of the Committee, presiding. 

Present: Senators Collins, Chafee, Lieberman, Akaka, Carper, 

Lautenberg, and Pryor. 

OPENING STATEMENT OF CHAIRMAN COLLINS 

Chairman COLLINS. The Committee will come to order. 

Good morning. First, let me apologize for the late start of the 

hearing this morning. We had a vote on the Senate floor, and it 

seemed to make more sense to vote first; rather than start the 

hearing and immediately have to recess it. So I appreciate your indulgence. 

Today the Committee is holding its second hearing on the security of our Nation’s chemical industry against terrorist attack. Our 

first hearing, on April 27, examined the chemical sector’s vulnerability to terrorism. Today we will seek answers to the central 

questions that hearing raised: What has been done to secure these 

vital facilities? What remains to be done? And is Federal legislation 

needed? 

We will hear from our distinguished panel of witnesses that Federal legislation is indeed needed to give the Department of Homeland Security the authority it needs to improve the security of 

chemical sites. 

The clear statement from the Administration that it supports 

new legislation and will work with this Committee to draft a bill 

is a welcome and appreciated development. While I had hoped for 

more detail on what specific authority the Administration believes 

is needed, the acknowledgement that current laws are inadequate 

is a positive first step. 

In the case of chemical security legislation, the devil truly will 

be in the details. In September 2003, and again in March 2004, 

President Bush stated his support for legislation that establishes 

‘‘uniform standards’’ for the security of chemical facilities. Yet, a biVerDate 0ct 09 2002 14:18 Dec 01, 2005 Jkt 021829 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\21829.TXT SAFFAIRS PsN: PAT
2

partisan legislative approach backed by the Administration has not 

emerged. 

There have been previous efforts. Former EPA Administrator 

Christine Todd Whitman worked with Tom Ridge, then-Director of 

the White House Office of Homeland Security, to develop legislation that would have given the EPA authority to regulate chemical 

plant security. According to Governor Whitman, however, the legislation was killed by a combination of congressional opposition and 

tepid Administration support. 

In the previous Congress, despite the efforts of Senators Inhofe 

and Corzine, a consensus was not reached on a chemical security 

bill. But this issue is simply too important to give in to gridlock 

and to accept inaction. We need to work together, and we need to 

eliminate the stumbling blocks that have tripped up legislative efforts in the past. 

The stakes are high. As we learned at our first hearing, the EPA 

has catalogued some 15,000 facilities in the United States that 

manufacture, store, or use hazardous chemicals for productive, legitimate purposes in amounts that could cause extensive harm if 

turned against us as weapons. The Department of Homeland Security uses a different methodology, but still has identified some 

3,400 facilities that could affect more than a thousand people if attacked. 

Only a fraction of our Nation’s chemical facilities are regulated 

for security by the Federal Government, or subscribe to voluntary 

industry security standards. 

The potential for a catastrophe is not merely theoretical. This 

Committee is cognizant of the 1984 tragedy in Bhopal, India, where 

more than 3,000 people died after an accidental release at a pesticide plant, and thousands of others suffered injury. 

And just a year ago, in Dalton, Georgia, a reactor overheated and 

released a plume of toxic vapor. This accident sent 150 people to 

the hospital. Carolyn Merritt, the Chairman of the U.S. Chemical 

Safety and Hazard Investigation Board, testified before this Committee and described this incident as the poster child of our chemical vulnerability. In January of this year, a derailed train car in 

South Carolina released chlorine gas, a common chemical used 

throughout industry. Ten people were killed by these toxic fumes, 

and 250 were injured. 

Nor is the potential for terrorists to instigate a chemical catastrophe merely theoretical. As Steven Flynn of the Council of Foreign Relations told this Committee at our first hearing, the chemical industry is at ‘‘the top of the list’’ of al Qaeda and other terrorist groups. The chemical industry, testified Commander Flynn, 

‘‘absolutely screams at you as essentially a weapon of mass destruction.’’

In describing the risks associated with attacks on chemical facilities, we often hear the phrases ‘‘time bombs’’ and ‘‘Achilles’ heel.’’ 

At first glance, these metaphors seem apt. In truth, however, they 

miss the mark. Time bombs succeed in their deadly work because 

they are hidden; the intended victims do not know of their existence until it is too late. These chemical facilities are not hidden. 

We know they exist. We know precisely where they are, and what 

they contain. And so do the terrorists. 

3

Preparing for a potential attack on a chemical facility is primarily about prevention; but it is also about response. I look forward to the testimony we will hear today from the EPA witness on 

the Agency’s role as coordinator of response to chemical releases, 

whether accidental or intentional, at most chemical facilities. We 

will also hear from the Department of Homeland Security about investigations of chemical sites and other actions that it is taking to 

strengthen security. 

I have quoted two witnesses from the Committee’s first hearing 

to remind us of the threat of a terrorist attack on our chemical infrastructure, and also of the deaths that have resulted from accidental releases. A statement by a third witness reminds us of why 

this Committee must act. 

Richard Falkenrath, the former Deputy Assistant to the President for Homeland Security, called the failure to regulate the security of facilities ‘‘a major disappointment.’’ He testified further that, 

‘‘To date, the Federal Government has made no material reduction 

in the inherent vulnerability of hazardous chemical targets within 

the United States.’’

It is time to reduce the vulnerability of our Nation’s chemical facilities to terrorist attack. And it is time for us to work together 

with the Administration, with industry and environmental groups 

and other interested parties, to draft a bipartisan bill. 

Senator Lieberman. 

OPENING STATEMENT OF SENATOR LIEBERMAN 

Senator LIEBERMAN. Madam Chairman, thank you very much for 

calling this second in a series of hearings on the security of our Nation’s chemical plants. With thousands of facilities scattered 

throughout our 50 States, chemical security is a key component of 

our overall homeland defense. 

We have been told in no uncertain terms by independent observers that not nearly enough has been done to address this danger. 

The experts have told us that the consequences of an attack on one 

of these chemical facilities could well dwarf the horror we witnessed and experienced on September 11, 2001. 

Madam Chairman, your willingness to take on this problem, this 

deficiency in our homeland defense, is a real act of public service. 

And I am confident that together we will bring forth legislation 

this year that will diminish greatly our vulnerabilities in this particular area. 

We have been warned of the dangers of a chemical catastrophe 

over and over again; and yet we are still at a great distance from 

putting anything approaching a meaningful chemical facility security apparatus in place. 

The Department of Homeland Security has launched a number 

of voluntary security initiatives with the chemical industry. But 

the GAO, the Government Accountability Office, says that these 

programs are still in their infancy. And others have questioned the 

likelihood that voluntary programs are enough to protect our security. 

Allow me to quote Richard Falkenrath again. He said earlier, ‘‘It 

is a fallacy to think that profit-maximizing corporations engaged in 

a trade as inherently dangerous as the manufacture and shipment 

4

of chemicals will ever voluntarily provide a level of security that is 

appropriate, given the larger external risk to society as a whole.’’

As representatives of that larger society which faces that larger 

risk, we in the Federal Government, I believe, have a responsibility 

to act. Thus far, from the Administration, unfortunately, we have 

seen inaction and indecision. 

In October 2002, as you referenced, then-EPA Administrator 

Whitman and soon-to-be-Homeland Security Secretary Ridge promised to work with Congress on legislation, saying that voluntary 

measures alone were insufficient to provide the level of security 

that the American people deserve. Almost 3 years later, nothing 

really has happened. The existing approach continues to be what 

it was then. 

Now, this morning, we will hear an announcement from the Department that is encouraging; which is to say that the Department 

today, under Secretary Chertoff, has essentially come to the same 

conclusion that Ms. Whitman and Secretary Ridge did earlier, and 

that is that voluntary measures are not enough. 

But I want to appeal to the representatives of the Department 

of Homeland Security and the Environmental Protection Agency 

that are here today, to not let this commitment go the way of the 

good intentions expressed more than 2 years ago—21⁄2, nearly 3 

years ago—by Administrator Whitman and Secretary Ridge. 

I appeal to you, as soon as possible, with a real sense of urgency, 

to come forward with specifics about the kind of regulatory and 

protective system that you feel the country needs. I think you will 

find in Senator Collins and me and Members of this Committee a 

willingness to work with the Administration in a genuinely bipartisan way, because this is a critical national security, and homeland security threat. 

I look forward to your testimony, and I look forward to working 

with you to diminishing the present and clear danger that faces the 

American people from an attack or an accident at a chemical facility, as quickly as we possibly can. Thank you. 

Chairman COLLINS. Thank you, Senator Lieberman. 

I would now like to welcome our panel of witnesses. Our first 

witness is Colonel Robert B. Stephan. He has perhaps the longest 

title of any witness who has come before this Committee. He is the 

Acting Under Secretary for Information Analysis and Infrastructure Protection at the Department of Homeland Security, and the 

Assistant Secretary for Infrastructure Protection. 

So assuming that I got that right, we do welcome you. 

He also served in the Air Force for 24 years, and he has been 

the Senior Director for Critical Infrastructure Protection at the Executive Office of the President. And we very much appreciate your 

being here. 

Our next witness after the Colonel will be Thomas P. Dunne, 

who is the Deputy Assistant Administrator for the Office of Solid 

Waste and Emergency Response at the EPA. Previously, he held 

several senior level positions at the EPA. 

We are very pleased that both of you could join us here today. 

Colonel Stephan, we are going to start with you. 

5

1The prepared statement of Mr. Stephan appears in the Appendix on page 35. 

TESTIMONY OF ROBERT B. STEPHAN,1 ACTING UNDER SECRETARY FOR INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. STEPHAN. Madam Chairman, thank you for acknowledging 

my many titles. I also have to admit that I must exercise multiple 

personalities with those titles in order to get the job done here at 

the Department. 

But good morning Madam Chairman, Senator Lieberman, and 

distinguished Members of the Committee. It is absolutely my privilege to come before you today to discuss the Department of Homeland Security’s efforts, in partnership with many other stakeholders across the country, to reduce the risk posed to the chemical 

sector—a vitally important sector in our criteria—from potential 

terrorist attack; as well as to give you some idea of the road ahead 

regarding the security of this critical infrastructure sector. 

I think I need to begin by saying that, first and foremost, it is 

very high priority for the Department of Homeland Security to reduce the risk from terrorism by implementing collaborative security 

strategies with Federal, State, local, and private-sector partners, to 

adequately protect the Nation’s chemical infrastructure from terrorist attack. 

My discussion with you today will include a focus on the risk 

landscape associated with this chemical sector and the important 

collaborative steps that have been taken to close security gaps 

under the existing voluntary public/private sector partnership; but 

also to note, very importantly, that considerable progress has been 

made through these voluntary efforts. But just as importantly, further progress is required to close remaining important security 

gaps. 

As a part of Secretary Chertoff’s Second Stage Review of DHS 

policies, operations, and structures, he tasked my team to review 

the current state of security and ensure that we have the proper 

tools to address the threats that face the chemical industry both 

now and in the future. To that end, we are currently assessing the 

need for a carefully measured, risk-based regulatory regime for this 

sector. 

To close the existing gaps and reduce risk across the chemical 

business, the Federal Government should adhere to certain core 

principles regarding any proposed regulatory structure. First, we 

must recognize that not all facilities within this sector present the 

same level of risk, and that the most scrutiny should absolutely be 

focused on those facilities that, if attacked, could endanger the 

greatest number of American lives, have the greatest impact on the 

American economy, or present other significant risks. 

Second, facility security should be based on reasonable, clear, equitable, and measurable performance standards. A regulatory 

framework should include enforceable performance standards based 

on the types and severity of the potential risk posed by the terrorists. Facilities should have the flexibility to select among appropriate, site-specific security measures that will effectively address 

those risks. 

6

Third, we should recognize the progress that many responsible 

companies in this industry have made to date. Many companies 

have made significant capital investments in security since the 

September 11 attacks, and we should build upon that progress collaboratively in constructing delicately the road ahead. 

What is the threat to the chemical sector? The chemical sector, 

just like all other critical infrastructure that we are concerned 

about, is a potential target for terrorist attack. While we, at this 

time, have no specific credible information indicating an immediate 

threat to the chemical sector, the Department remains concerned 

about the potential public health and economic consequences 

should a successful attack take place. 

The chemical sector consists of widely varied and distributed facilities. It presents a comprehensive, sweeping challenge to us. The 

particular vulnerability of any specific facility within this overall 

landscape obviously depends on the type and quantity of chemicals 

onboard a site, the physical layout and location of sensitive target 

sets within a site, access points, geographic location, and many 

other variables. Therefore, each facility must have a risk assessment and a security plan that is tailored to its unique security environment and considerations. 

In December 2003, President Bush issue Homeland Security 

Presidential Directive 7, which assigned DHS overall responsibility 

for coordinating the national effort to ensure the protection and security of America’s critical infrastructures and key resources in 17 

different categories. 

Additionally, this document requires DHS to develop a sectorspecific plan for the chemical sector, and to work with public and 

private sector partners across the board to implement the necessary protective measures aimed at reducing the vulnerabilities 

inherent in this sector. 

In line with the President’s guidance, a large number of security 

visits have been completed by DHS, the Coast Guard, and the Infrastructure Protective Division, and protective measures are being 

implemented for the highest-risk chemical sites in the United 

States. The Department continues to visit other chemical facilities 

on a priority basis in coordination with various State homeland security advisors, emergency management officials, State and local 

law enforcement officials, and actual individual site owners and operators. 

DHS and the chemical sector also continue to build a strong partnership based on information sharing and active collaboration. I 

am pleased to report to you that these efforts have yielded a very 

solid information-sharing backbone and network, as well as a comprehensive approach to assessing risk for the sector. 

It is also important to identify the work that the chemical sector 

itself has done to date, in a close partnership with DHS, to take 

care of its security responsibilities. The owners and operators 

across the chemical sector to a large degree are voluntarily undertaking a variety of important security initiatives. 

In 2002, the American Chemistry Council developed the Responsible Care Security Code to help chemical companies achieve improvement across the board in security performance through a focused approach based on identifying, assessing, and addressing 

7

vulnerabilities; preventing or mitigating incidents; enhancing training and response activities and capabilities; and maintaining and 

improving relationships with key Federal, State, and local governmental partners. 

A component of this Responsible Care Security Code is the requirement for an independent third-party verification of the security enhancements, as well as the competent completion of the site 

vulnerability assessments that they are tasked to do under this 

code. The ACC estimates that its members have spent over $2 billion in securing various sites across the industry, in terms of their 

membership, since the September 11 attacks. 

Closing the gaps, and the path forward. At DHS, a major focus 

of the past 2 years has been developing tools for assessing risks 

and working cooperatively with local jurisdictions and companies 

themselves to implement appropriate protective measures. As we 

further assess the status of the chemical sector’s largely voluntary 

security regime, we have also been evaluating whether or not the 

current scope and level of effort will be sufficient to address important remaining gaps and emerging threats. 

In short, while most companies have been eager to cooperate 

with the Department, it has become clear that the entirely voluntary efforts of these companies alone will not sufficiently address 

security for the entire chemical sector. 

Based upon work done to date, however, we now have much 

greater clarity regarding the tasks ahead, tested tools, and a considerable knowledge base that will help us make informed decisions as we go about closing these remaining serious security gaps. 

By exploring all available means to enhance the existing voluntary system, we want to ensure that all facilities have in place 

a core base of preparedness; that those facilities that pose the 

greatest risk are receiving more focused attention; and that the Nation’s approach to the chemical sector’s security problem will be 

based on reasonable, clear, equitable, and enforceable and measurable performance standards that reflect the diversity of the chemical sector as well as the responsible security investments that 

have been made across the industry to date. 

Since September 2001, the Administration has worked in partnership with numerous stakeholders to enhance the overall security of this vitally important sector. Through a combination of governance structures, information-sharing mechanisms, risk assessment and risk-based planning approaches, programmatic initiatives, local law enforcement enhancements, voluntary industry efforts, the chemical sector has demonstrated considerable progress 

in bolstering its security posture. 

But further progress is required, is needed. By developing a comprehensive risk-based approach for the chemical sector, we expect 

to be able to obtain more closures in a significant way to close remaining gaps in this vitally important area. 

This concludes my prepared remarks. I would be happy to answer any questions at your time, or defer to you, Madam Chairman. 

Chairman COLLINS. Thank you. Mr. Dunne. 

8

1The prepared statement of Mr. Dunne appears in the Appendix on page 44. 

TESTIMONY OF THOMAS P. DUNNE,1 DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY 

RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. DUNNE. Thank you, Madam Chairman and Members of the 

Committee. My name is Thomas Dunne, and I am the Deputy Assistant Administrator for EPA’s Office of Solid Waste and Emergency Response. 

I am pleased to appear today to discuss aspects of EPA’s Emergency Response Program and, in particular, the chemical site security issues. I will summarize my written statement, but I ask that 

my entire written statement be submitted for the record. 

Chairman COLLINS. Without objection. 

Mr. DUNNE. EPA’s Emergency Response Program conducts emergency clean-up actions at oil and chemical spills and hazardous 

waste sites, and is involved with preparing and planning for chemical emergencies, working with a network of State and local emergency planning organizations. 

EPA’s response can cover a wide range of emergencies, including 

the World Trade Center in New York City, Capitol Hill anthrax 

and Ricin clean-ups, and helping to manage a multi-State effort to 

recover debris from the space shuttle Columbia disaster. 

In addition to our emergency support functions, EPA has 

partnered with the Department of Homeland Security and other 

Federal agencies to develop and implement the National Response 

Plan, the National Incident Management System, and the National 

Infrastructure Protection Plan. 

EPA is also responsible for the development and implementation 

of Federal regulations for reporting under the Emergency Planning 

and Community Right To Know Act, the emergency release reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act, the oil spill prevention response planning requirements under the Oil Pollution Act, and 

chemical accident prevention and mitigation under the Clean Air 

Act. 

In response to the terrible consequences of the Bhopal, India 

chemical disaster in 1984, Congress established chemical accident 

prevention programs by enacting the Emergency Planning and 

Community Right To Know Act, and Section 112(r) of the Clean Air 

Act. EPCRA requires States to create State emergency response 

commissions, known as SERCs, and requires local communities to 

form local emergency planning committees, called LEPCs, that 

would prepare local emergency response plans for chemical accidents. 

EPCRA has also required chemical facilities to provide LEPCs 

with the information needed for emergency planning, and to submit 

annual chemical inventory reports to SERCs, LEPCs, and local fire 

departments. EPCRA does not require facilities to take actions to 

prevent chemical accidents. 

Section 112(r) of the Clean Air Act required stationary facilities 

that handle extremely hazardous materials to prevent and mitigate 

accidental releases into the air. It also required EPA to develop 

9

risk-management requirements for the subset of chemical facilities 

that had large quantities of the most dangerous chemicals. 

EPA subsequently required certain chemical facilities to conduct 

hazard assessments; develop and implement accident prevention 

and response programs; analyze the consequences of worst-case 

and alternative release scenarios; and provide a report called the 

‘‘Risk Management Plan,’’ or also, RMPs. Approximately 15,000 facilities are subject to these RMP requirements. 

Following the September 11 terrorist attacks, one of the actions 

taken by the President was to assign EPA with chemical and 

drinking water security responsibilities. EPA considered using its 

authorities under Section 112(r) to require facilities that handle extremely hazardous substances to secure them against terrorist attack. However, EPA concluded that using the Clean Air Act Section 

112(r) and its language regarding accidental releases to require facilities to take additional security measures for a terrorist attack 

would subject the agency to a significant legal vulnerability and result in protracted litigation. 

As a practical matter, the issue was overtaken by the creation of 

the Department of Homeland Security. After the creation of the Department, Homeland Security Presidential Directive 7 made the 

Department the lead for the chemical and hazardous material sector concerning infrastructure protection issues. 

The Department is the lead Federal agency for chemical security, 

and EPA serves in a supporting role by providing information and 

analytical support as needed. 

That completes my statement, Madam Chairman. I would be 

pleased to answer any questions that you or the Committee may 

have. 

Chairman COLLINS. Thank you very much, Mr. Dunne. 

Colonel, of the 17 critical infrastructure and key resource sectors 

that the Department is focusing on, where does chemical security, 

the security of chemical sites, rank in the Department’s priorities? 

Mr. STEPHAN. Well, Senator, according to HSPD–7, the President’s guidelines are very clear. They push us towards a focus on 

those sectors, first and foremost, that may be through a terrorist 

attack used as weapons of mass destruction or produce mass effects 

against American citizens and the economy. In terms of those 

guidelines, we clearly feel that the chemical sector is right up there 

as one of the top priority sectors of the 17. 

Chairman COLLINS. I know that the Department, along with the 

EPA, has visited many of these chemical facilities, done inspections, and made recommendations for security improvements. But, 

at our first hearing on this issue, the GAO testified that, despite 

the potentially catastrophic damage that could be inflicted by an 

attack on a chemical site, a comprehensive security assessment of 

these facilities has not been completed yet. 

GAO testified that, ‘‘While DHS and EPA have visited a number 

of facilities to discuss security, the results of these visits are at this 

point unclear.’’ Could you share with us some of your general findings as a result of these site visits? 

Mr. STEPHAN. Yes, ma’am. Just to clarify some of the numbers 

that are important to consider here, as you correctly pointed out, 

we consider among the top tier of chemical facilities across the 

10

United States, using EPA metrics that my colleague, Tom, could 

probably go into in a little greater detail—there are about 3,400 

things that we consider high-risk, with the respect to the ability to 

impact a thousand people or greater. 

Within that, we also have several upper-echelon tiers gradated so 

that we have a category between 10,000 and 50,000; 50,000 to 

500,000; and then, above 500,000. Of the top two tiers, the DHS 

will have visited, between the Infrastructure Protection Division 

and the Coast Guard, every single one of the top tier sites. 

Chairman COLLINS. And how many facilities are in the top tiers? 

Mr. STEPHAN. Two hundred and seventy-two, ma’am. And each 

of those sites is developing and required to turn in to the Department of Homeland Security IP Division buffer zone protection 

plans, which are very sophisticated, law-enforcement-produced—

State and local law-enforcement-produced, under the supervision of 

the homeland security advisors for the States—detailed plans in 

terms of how the law enforcement—what response law enforcement 

would take; capabilities that need to be addressed, both in terms 

of information connectivity, information sharing, actual response, 

personal protective gear for law enforcement folks. That kind of information is due to us in a comprehensive set of plans by September 30 of this year. 

In addition to that category of planning, the Department has 

made site visits to what we consider to be about three dozen or so 

of the most high-risk top-tier facilities; actual inside-the-fence vulnerability assessments, in partnership and at the invitation of the 

facility owners and operators. And the degree of cooperation that 

we have seen during those particular visits has been very good. 

We have seen various instances, evidence of the $2 billion-plus 

that I mentioned in my formal testimony being spent in terms of 

improved physical enhancements across the sector; improved cyber 

enhancements in terms of security across the sector; additional 

staffing; linkages in terms of information networks, both with us 

and with State and local law enforcement, that would provide the 

bulk of the reinforced response in the event of a terrorist attack. 

We have seen guidelines, the Responsible Care Code, as I mentioned during my testimony. For the members of the chemical sector that participate in that code, there I think have been very legitimate, very real, and very qualitative improvements in security 

across the board. 

But again, there is a certain percentage of the sector—I want to 

estimate, based on input from my folks and as a result of these visits, in coordination with ACC and other major associations, roughly 

20 percent or so of the capacity—that we would be concerned about 

in terms of risk, that is unaccounted for under the Responsible 

Care Code. And therefore, I cannot come to the President or to you 

with a straight face and say, ‘‘Ma’am, I absolutely know what is 

going on there. I am comfortable with it 100 percent.’’

Some of them do let us in. Some of them let us take a lengthier 

look than others. But again, once you get beyond the Responsible 

Care Code, there are really no good metrics, solid metrics. About 

20 percent of things that we consider very important that I just 

cannot report on favorably, one way or the other, to you. 

11

Chairman COLLINS. And that is one reason that the Administration is supporting legislation, so you will have the authority to require a vulnerability assessment of every high-risk chemical site? 

Is that correct? 

Mr. STEPHAN. What we would like to do, in any kind of regulatory framework that we would envision that security focus—there 

are certain general principles that would have to be brought to the 

table and considered; a credible, competent, credited risk assessment approach, with a risk assessment methodology that has been 

accepted in some way, shape, or form. 

We have to have security planning, using a risk-based approach, 

based upon those vulnerability assessments or risk assessments. 

We would have to have implementing measures put in place that 

are risk-based, that reflect the risks and the vulnerabilities that 

come about during the assessment process. We would have to have 

some ability to audit those activities, and some general mechanism 

to ensure compliance with everything that I said. 

A lot of these elements have been in various legislative proposals 

that you and others have seen over the past couple of years. And 

that basic framework remains the framework that needs to be answered and brought to the table, I think, in any kind of proposed 

regulatory structure. 

Chairman COLLINS. Thank you. 

Mr. Dunne, I am trying to understand how we go from the EPA’s 

listing of some 15,000 chemical sites that either store, use, or manufacture high-risk hazardous chemicals, to DHS’s list of 3,400 

chemical sites that are high-risk. 

The EPA, for example, has estimated that there are 123 facilities 

that, if there was a release, could affect a million or more people. 

I realize we are not talking about casualties necessarily here, but 

an effect on a million or more people. DHS seems to have a far 

more conservative estimate, and comes up with some 300 facilities 

that could affect a population of greater than 50,000 people. 

I am trying to understand what the scope is here, and how we 

go from 15,000 facilities on the EPA’s list to 3,400 facilities on 

DHS’s list. I would like you to start, and then I will ask you, Colonel, to comment. 

Mr. DUNNE. Well, the 15,000 facilities come about because the 

legislation calls for the amount, quantity of facilities, and the types 

of chemicals that are used or stored there. There are 140 different 

chemicals. And then we gauge in terms of what quantity represents 

a potential problem. And it turns out it is 15,000. 

When we went out with the original regulations in 1999, it was 

15,000. We have had a couple thousand go off the list, and a couple 

thousand come on. So the number has not really changed. 

The point of the 123 facilities, I have read the statement and I 

have read news reports about that. And it is generally overstated, 

in terms of what the concern is. Of those 123 facilities, there are 

a million people in the surrounding areas. So if you took the facilities as a point, a central point, and you reached out and drew a 

radius around it, there would be a million people that, depending 

upon circumstances, could be affected. It certainly does not mean 

anything in terms of fatalities or casualties. 

12

The fact is that I believe DHS—and I will let Bob speak more 

directly to it—took a look at analyzing, and that seems to me a 

very reasonable approach, in terms that we do know that wind 

blows in one way; you have atmospheric circumstances that override that. A million people are not going to be affected in any one 

place. 

Now, the closer you are to a facility, depending upon the release 

and the type of chemical, it could create problems. So actually, the 

123 is now 110 in the most recent count that our staff did on it. 

And I do not think it is a drop-off, in terms of their logic. Because 

it seems to me that what they did is focus on what are the targets 

that would be of most serious concern, and honing in on those at 

the beginning, and then working your way down the list. 

Chairman COLLINS. Thank you. Colonel, I will come back to you, 

since my time has expired, in the second round. 

Senator Lieberman. 

Senator LIEBERMAN. Thanks, Madam Chairman. It seems to me 

that the big question that has been decided but not acted upon is 

whether voluntary measures by the chemical industry are enough 

in the face of the threat posed here that everyone agrees on. And 

the answer, I believe we will all come to, is that voluntary measures are not enough. 

I appreciate and admire the voluntary measures that have been 

taken by the industry, but I think when you set the reality against 

the enormous threat from either a terrorist attack or an accident, 

the Federal Government has to speak for the national security, the 

homeland security, and the public safety, and ask more. 

And I gather from your statement today—I conclude from your 

statement today that the Administration has reached that conclusion. I quote from, Colonel Stephan, your printed testimony before 

the Committee today, ‘‘I can report on his behalf that Secretary 

Chertoff has concluded that, from the regulatory perspective, the 

existing patchwork of authorities does not permit us to regulate the 

industry effectively.’’

To some extent, that mirrors the conclusion that Administrator 

Whitman and Secretary Ridge articulated about 21⁄2 years ago. So 

let me begin with a general question; which is that the cynics or 

the skeptics would say, well, how is this any different, the announcement that you are making this morning on Secretary 

Chertoff’s behalf, than the statement that Administrator Whitman 

and Secretary Ridge made 21⁄2 years ago, which has produced nothing—I mean, nothing regulatory—since then? 

Mr. STEPHAN. Sir, thank you for that assessment. I think I want 

to make one clear point; that this is not a change in Bush Administration policy, in terms of going back as far as the President’s physical critical infrastructure protection strategy that was released in 

February 2003. 

Basically, he has stated clearly our willingness to work with 

Members of Congress on this issue because it was, even back in 

those days, beginning to be apparent that voluntary efforts alone 

and voluntary codes were not necessarily going to get us to the end 

state across the sector that we would be comfortable with. 

And the Administration has participated in numerous efforts and 

aspects of a dialogue with both houses of Congress over the past 

13

couple of years, to try to figure out what the appropriate solution 

might be. 

I think there are two key and very distinct differences that I am 

bringing to the table for you today. Before I get to that, though, the 

new team is onboard. Secretary Chertoff assumed his responsibilities back in February. I assumed these current responsibilities 

about 7 weeks ago. Secretary Chertoff asked me to take a look, 

under his second stage review, at this chemical security issue, as 

well as the infrastructure protection mission area at large; but 

drilling down within that the things that we think are absolutely 

the most important and significant, need to be accelerated in terms 

of our approach. 

Having said that, basically agreeing with the conclusion that has 

been on the table for the past couple of years, two new dynamics. 

We now have a very clear understanding, I think, of where the voluntary security regime that has been in vogue for the last 3 years 

has taken us. The extent that we are going to be able to get the 

effects we are looking for out of that voluntary regime is now fairly 

clear. 

That regime was just coming on the table, in terms of the private 

sector roll-out of that Responsible Care Code that I discussed, 2 

years ago. So now we clearly understand, working in partnership 

with industry, the extent to where that is going to take us on the 

security spectrum. 

Added to that is 2 years ago, to come to you all with a reasonable 

approach was not as possible as it is today, in terms of risk management. We did not have the risk assessment tools—the science. 

The technology was just not there 2 years ago. 

I am happy to report that, in partnership, in full collaboration 

with the chemical sector across the board, we have been working 

diligently for the past year or so to develop an acceptable, measurable, risk-based formula that brings together consequences, vulnerability, and threat into a tool that is Web-based, and that we are 

now finished and ready to deploy uniformly across the chemical 

sector. 

So because of the technology, building upon the baseline of the 

voluntary efforts that have been put into practice up to this point, 

we can come back to you, I think, with a much more measurable, 

sophisticated approach, other than some kind of blanket authority 

to do lots of things across the sector that may or may not be relevant based on a risk metric. 

Senator LIEBERMAN. I hear you, and I appreciate that. And so 

you have got a better risk-based analysis now, which would be the 

basis for legislation. And you have lived for some period of time 

under the voluntary system. You know what it can do and what it 

can not do. 

Mr. STEPHAN. Correct. 

Senator LIEBERMAN. What are the major shortcomings of the voluntary system, would you say? What is not being done that we 

would want to do legislatively and by regulatory system? 

Mr. STEPHAN. Yes, sir, I think basically two answers to that 

question. For the operational capacity that we believe to be highrisk, around 20 percent of the overall sector that is not participating in any kind of measurable voluntary code, that would allow 

14

us to get to that part of the problem and tighten down the loop in 

terms of that. 

Senator LIEBERMAN. Let me make sure I understand that. You 

are saying, based on the risk analysis you are able to do now, that 

20 percent of those facilities that you would consider to be highrisk have not assumed on a voluntary basis their responsibility? 

Mr. STEPHAN. We believe that about 20 percent of the operational capacity, in terms of output of the chemical sector, is not 

governed by any kind of voluntary practice or voluntary security 

code. 

Senator LIEBERMAN. Is that 20 percent of those you consider 

high-risk, or 20 percent of the overall community that is chemical? 

Mr. STEPHAN. That is 20 percent of the overall capacity that we 

would consider to be high-risk. 

Senator LIEBERMAN. Got it. I am sorry, go ahead. 

Mr. STEPHAN. Yes, sir. So that would attempt to close the gaps 

on that end of the spectrum. 

The other piece that we really want to get to is the pieces of industry that have very responsibly been making some very significant investments and enhancements over the past couple of years. 

We want a way to make sure that we can measure those, using 

risk-based metrics and criteria, to ensure that those kinds of measures that have been put in place, based upon the unique requirements of every individual facility that we consider to be at high 

risk, are appropriate or having a measurable effect that we can 

then take to the President, report progress, take to you and report 

progress; and to be able to sustain all of that momentum, very importantly, over time, as we move further and further beyond September 11. 

Senator LIEBERMAN. I hear you. Let me ask this—there was general feeling on Capitol Hill that EPA under Administrator Whitman had put together a legislative proposal to go beyond voluntary 

initiatives and have some mandated security requirements on part 

of the chemical industry, but it never made it to the Hill. 

My question to you, and to you Colonel Stephan, as we begin 

anew, is whether what you are saying is you are prepared to support legislation, or work with us, that a Committee like ours would 

come up with? Or is the Administration intending to make a specific legislative proposal in this area? 

Mr. DUNNE. Well, let me start, and then Bob can answer. In 

terms of any legislation that was developed at EPA or other places 

in the Administration, there were discussions, but there was nothing actually developed as such. And it was somewhat abandoned, 

as we had given consideration to see if we could use Section 112(r) 

and whether or not that was a good idea. And besides the lawyers 

bantering back and forth for a period of time, both within EPA and 

also other agency departments, it was decided not to go the legislative route. 

And at the same time, when we looked at Section 112(r) we 

thought, from both a legal and a policy consideration, we would 

have been bogged down in the courts in regulations and, to this 

day, we probably would not have anything out. So there was never 

a serious legislative proposal that was forthcoming that would have 

come to OMB and be transmitted to the Hill. 

15

Senator LIEBERMAN. So Colonel, let me ask you the question. Is 

the Administration going to make a specific legislative proposal to 

the Committee? Or are you wanting to just work with Senator Collins and me and the other Members as we develop legislation? 

Mr. STEPHAN. What we would like to do, as the point I made earlier, is that we basically own the metrics, the tool that is going to 

allow us to take what, I think, is a reasonable, rational, measured, 

and effective approach to this. So we own that methodology. What 

we have to do is take that methodology in accelerated fashion and 

build a proposed regulatory framework around that methodology 

through the policy coordination processes of the Homeland Security 

Council. 

Having established and put some more granularity, some more 

bones on the skeleton of my testimony I delivered today, we would 

like to then work with you, based upon that knowledge base we 

have, the technology that has been pushing us over the last 2 

years—work collaboratively with our partners in Congress to put 

the right solution on the table. 

Senator LIEBERMAN. So if I hear you correctly, the Administration is not intending to send us a proposal. But you are saying 

today you want to work with us on developing a proposal? 

Mr. STEPHAN. Yes, sir, but a proposal based upon the regulatory 

principles and framework that our technology permits. 

Senator LIEBERMAN. Understood. My time is up. But I do want 

to say finally that there has been some attempt to deal with this 

problem of chemical plant security in the Environment Committee. 

Unfortunately, it has been gridlocked. There, the focus was naturally on the environmental consequences of chemical security. 

Here, we are focused on homeland security. But there is an overlap, naturally. 

And I do think that—with all respect, because I am on that Committee, too—I think Senator Collins and I begin with a strong nonpartisan interest, from a homeland security point of view, in getting something done. 

So I welcome what you have said today. And again, I look forward to working with you, with a real sense of urgency, to get 

something done to protect the American people as soon as possible. 

Thank you. 

Chairman COLLINS. Thank you. Senator Chafee. 

OPENING STATEMENT OF SENATOR CHAFEE 

Senator CHAFEE. Well, thank you, Madam Chairman. And as 

Senator Lieberman said, we worked on the Environment and Public Works Committee—Senator Lautenberg, Senator Carper, and 

Senator Corzine—all working on trying to get some compromises 

on the environmental issues. And it was difficult. I think we got 

hung up on inherent safer technologies. 

But now as we go forward I am questioning, as Senator 

Lieberman did, on the voluntary aspects, as it exists now. And if 

I understand correctly, 20 percent are not participating, high-risk. 

And is there a cost to those companies that are participating, the 

80 percent that are participating, that give an unfair advantage to 

those that are not, Colonel? 

Mr. STEPHAN. Sir, I am not quite sure I understand the question. 

16

Senator CHAFEE. If I heard your answer correctly, 20 percent 

under the voluntary scenario are not participating in undergoing—

introducing safer measures. Do I hear that right? 

Mr. STEPHAN. That is correct. 

Senator CHAFEE. And so there must be a cost advantage to them. 

And that is my question. Those companies, the 80 percent that are 

participating, are incurring costs that the other companies are not 

incurring; and thus there is an unfair advantage. Does that mean 

we should enact legislation, considering that there is unfair advantage, those companies that are not incurring these costs? 

Mr. STEPHAN. OK, sir, thank you. Again, I am not an industry 

expert on this topic. And I would defer any real granular answer 

back to you to one of the industry associations, itself. 

But to my understanding, most of the capacity that we are worried about that would be high-risk that does not fall within the voluntary regime constitute or are represented by mid-sized to smaller 

companies that still have very considerable amounts of chemicals 

or types of chemicals onboard their sites that would cause us to 

place them in the high-risk category. Therefore, the profit margins 

there are something that are a very serious concern to that aspect 

of the industry. 

Having said that, I think that we can, with the risk assessment 

methodologies and tools that we have come up with now, work out 

some solutions that are facilities-based, as opposed to sector-based, 

that would bring down the same thing across the board at every 

single facility. 

I think we are better now. We are able to make better and more 

informed judgments. And we could adjust the security framework 

based upon risk and based upon a menu of options that would meet 

a certain criteria that these companies would be allowed to pick 

from; hopefully, some solutions are more cost effective than others. 

Senator CHAFEE. Well, once again, we worked hard on the EPW 

Committee, and look forward to working with you here to get some 

fair legislation. Thank you. 

Chairman COLLINS. Thank you. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thanks, Madam Chairman. It is sort of ironic—

I will follow up on what Senator Chafee was saying—that four of 

the five Members that are here today are folks who also serve on 

Environment and Public Works. And we have worked in these vineyards a little bit earlier. And I think one of the reasons why most 

of the folks that are here today are from EPW is because of our 

familiarity with these issues and our interest in these issues. 

I am from Delaware; Senator Lautenberg over here, is from New 

Jersey. Chemical facilities and the products that they produce are 

important to my State and, obviously, to his. I understand our new 

Secretary, Secretary Chertoff, is actually from New Jersey. And I 

just was kind of wondering out loud—and you do not have to answer this question—but maybe one of the reasons why there is 

some renewed interest or some stronger interest in this issue, in 

trying to work with us to find a path forward, might be because—

what’s the old saying—all politics is local, and he comes from a 

17

State where these issues are important. And they have even more 

chemical plants in New Jersey than we do in Delaware. 

And we know that in our State an incident at a chemical plant 

can be devastating. We know that we are vulnerable to some extent 

in our State and other States, as well—probably, all States, if you 

have got 15,000 chemical plants out there; probably covers just 

about everybody. And it is important for us, I think, to not wait 

for the terrorists to show us that we need to do more. 

The first question I want to ask just to the two of you, how long 

have you all been working together on these issues? Is this a new 

partnership? Is this something that you all have been working on 

for a couple of years? Is this the first time you have met? 

Mr. DUNNE. Well, we have been working together on the National Response Plan and National Incident Management System 

for going on 3 years. And in terms of this subject matter, Bob is 

relatively new to it, but our office has been involved in it for 3 

years, since it was discussed at EPA back at that time. 

Mr. STEPHAN. That’s right. We have been working together with 

the EPA since the Department’s existence. And with the issuance 

of HSPD–7, they are the sector lead for the water sector and all 

things security-wise associated with the water sector. We have a 

good partnership; a partnership, a framework, that was nurtured 

in fact during our joint work on the National Incident Management 

System and the National Response Plan. So I think it has been a 

great and effective partnership. And we play off each other’s authorities and strengths in order to tackle problems jointly. 

In terms of the comments that you made earlier, I just want to 

emphasize that the President has focused us, through HSPD–7, on 

the sectors that are of highest risk to the Nation in terms of public 

health and safety, economic consequences, and the like. And because of the chemical sector’s potential to be used as a weapon of 

mass destruction or weapon of mass effects under certain scenarios, 

that is clearly specified or called out in the President’s guidance to 

us. 

And in terms of Secretary Chertoff’s State of residence, he represents very well the great State of New Jersey, but the man is 

risk-based in everything I have seen him do since he has taken office. And I think that is the right approach for this time. And I am 

just happy that the technology that we now have at our fingertips 

is able to basically facilitate or enable the furtherance of that approach. 

Senator CARPER. The title of today’s hearing is ‘‘Is the Federal 

Government Doing Enough To Secure Chemical Facilities and Is 

More Authority Needed?’’ And let me just ask each of you, just 

without a lot of jargon, just as plainspoken as you can be, just answer that question for me. I will say it again: Is the Federal Government Doing Enough To Secure Chemical Facilities and Is More 

Authority Needed? Just very plainspoken. 

Mr. STEPHAN. Yes, sir. I’ll say absolutely, no one is ever doing 

enough when it comes to critical infrastructures. That is as 

plainspoken as I can get. But I will say we have made important 

advancements. And the newspaper accounts that I read and the 

pronouncements from academics and others that say we have done 

nothing is absolutely the farthest possible thing from the truth that 

18

I can envision, based upon going over this in considerable depth 

with my team since I assumed this position. 

We are working with the industry. We are doing risk assessments. We partner developed the methodology that is going to 

guide us both to the future; set up information-sharing mechanisms 

that work——

Senator CARPER. This is important to us. It is important to our 

States and to our country. So what I hope flows out of here is the 

opportunity for us to work with Senator Collins and Senator 

Lieberman. And we are pretty good in this Committee working 

across the aisle, and have got great leadership. 

Mr. STEPHAN. Yes, sir. 

Senator CARPER. And we just want to be able to work with you. 

My view—and this is just the way I look at it—you all have a lot 

to say grace over, since the Department was created. And you must 

feel like a lot of days you have been drinking out of a fire hydrant 

in the last several years; probably still feel that way some days. 

So there is a lot for you to focus on. You now have a chance to 

focus on this. And we just want to work with you to get the job 

done and to make our communities and our chemical facilities 

safer. 

Mr. STEPHAN. OK. 

Senator CARPER. I will go back and restate the title of the hearing: Is the Federal Government Doing Enough To Secure Chemical 

Facilities and Is More Authority Needed? Let’s focus on the second 

half of that, ‘‘And Is More Authority Needed?’’

Mr. STEPHAN. Yes, sir. Doing a lot; need to do more. And more 

authority is clearly needed. 

Senator CARPER. And give us some idea what context, what format authority might take. 

Mr. STEPHAN. What we would like to do is work in partnership, 

again, with you all, to figure out what the right mix is for this sector, based on some key principles; that we use a risk-based approach to setting up this regulatory framework that takes individual facilities into consideration, so that we do not attempt to put 

a cookie cutter in place and expect that is going to do the job for 

us in any sense. 

We are better than we were 2 years ago. We have the technology 

to help us inform that structure. We want to make sure what we 

put in place is equitable, fair, takes into account responsible investments that have been made. But at the end of the day, it has to 

be effective and it has to be measurable. 

But it also cannot be the same. Because one important aspect 

that we all are concerned about, if we put a detailed reg out that 

says, ‘‘Every chemical facility will approach it in this manner, 

using the following steps,’’ I do not know a better cookbook to give 

to al Qaeda than that outlines exactly the level of security by facility across the country. We have to be very careful we do not do 

that; and allow a menu of options to be selected flexibly, as long 

as they are measurable, effective, and get the job done. 

Senator CARPER. Mr. Dunne, do you want to jump in here? 

Mr. DUNNE. Well, I would agree with Bob that authority is needed. But I do think the knowledge base in the last 21⁄2 years has 

grown appreciably, much more than when we were thinking about 

19

the program before DHS became a reality. And I think they have 

developed tools that certainly were not at our disposal back when 

we were looking at the project at EPA. So I would support what 

he said in terms of authority. 

And coming from a regulatory agency, one of our problems with 

regulatory programs is trying to fit everything under one big regulation. And it is a problem. And as you know, Senator, our RMP 

plans are available to the public under community right to know, 

but there is certain information——

Senator CARPER. I’m sorry, say it again. What plans are available? 

Mr. DUNNE. The management plans on this Clean Air Act, under 

Section 112(r). But there are also consequences, which only can be 

seen in reading rooms. And there are 50 reading rooms. I think we 

have got to be careful about how much we provide outside of the 

realm of the facility and the law enforcement people and the Federal Government officials. I think there is a real danger of having 

plans floating around, where any terrorist, or almost any amateur—it doesn’t have to be a professional terrorist—can get their 

hands on information. So I think it has to be a thoughtful approach. 

And I would agree that coming up here at a public hearing, if 

we did have the answer, what should go in the legislation, ought 

to be really thought out in terms of what are we doing to protect 

the American public and what are we doing to make sure the security of the country is being held that we are not aiding and abetting enemies. 

Senator CARPER. All right, good. My time has expired. Madam 

Chairman, thanks very much. 

Chairman COLLINS. Thank you. Senator Lautenberg. 

OPENIN STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thank you, Madam Chairman, for convening this hearing as you have. It has been too long since we have 

had the horrible experience that has shaken our resolve and our 

comfort in that we are doing whatever we should to protect our 

people from assault. And Madam Chairman, I ask unanimous consent that my opening statement be included in the record. 

Chairman COLLINS. Without objection. 

[The prepared statement of Senator Lautenberg follows:]

PREPARED STATEMENT OF SENATOR LAUTENBERG 

Madam Chairman, thank you for convening this hearing on this critical topic. 

My concern about the security of chemical plants dates back to the late 1990’s. 

It’s now 2005 and time to stop talking and start acting to confront the terrible risks 

that have not diminished since September 11. 

New Jersey has some 1,600 chemical facilities within its borders—not one of 

which is now legally required to take any of the risk-reduction steps identified by 

the experts in our last hearing. 

Today, I want to hear what the Department of Homeland Security has accomplished in the last 30 months to protect our children and our families. 

The GAO tells us that between 10 and 100 million Americans live in a vulnerable 

zone of potential sickness and death. 

The Congressional Research Service has calculated that more than 8,000 schools, 

or hospitals, or both, are near one of the nation’s chemical facilities. 

In the wake of September 11, we can not any longer afford to keep talking about 

these risks—it is time for action. 

20

The 9/11 Commission cautioned that we must not focus so much on the last attack 

that we miss the next attack to strike our country. 

I’m afraid we have failed to absorb that lesson as well as we should. 

And chemical plant security is one of the most glaring examples of that failure. 

There are about 15,000 chemical facilities in the country. More than half of them 

are located near our families, where our children and grandchildren live and play. 

More than one thousand human beings could be killed. 

For example, according to EPA the largest ‘‘zone of vulnerability’’ to wide-spread 

death and injury is in South Kearney, New Jersey where twelve million people live. 

Mr. Chairman, the attacks of September 11 were devastating. My State lost 700 

of our friends, neighbors and loved ones that day. We all hope that we never see 

the like of it again. 

But the fact is, a terrorist attack on a chemical facility could be even worse. 

And by ignoring the threat, we might be inviting such an attack, because terrorism experts say our enemies like to focus on poorly secured ‘‘soft’’ targets. 

I would urge my colleagues on the Committee, who I know are very committed 

to this issue, to move forward from this hearing toward a legislative remedy. 

I thank all the witnesses who are with us today, and I look forward to hearing 

their views on this crucial issue.

Senator LAUTENBERG. I thank you for that. 

Mr. Stephan—and I thank you both for your testimony—in light 

of the announcement this morning that we have seen in the paper 

and the news that the Bush Administration is now endorsing mandatory requirements for increased security at chemical plants, have 

you looked at the Corzine bill, my colleague’s bill, in terms of what 

he would like to see done with the Chemical Hazards Board, the 

management of these facilities, to better conform to our security 

needs? Have you looked at that? 

Mr. STEPHAN. Sir, in developing this framework—and again, I 

want to emphasize that this is not a new approach. The policy has 

always been that we are willing to partner with Congress to figure 

out the right legislative solution to fix some gaps across this sector. 

I, personally, have not gotten in depth into any of the previous 

amendments or potential pieces of legislation that have come forward, being new to this. But I can assure you that as we take a 

look at working together to develop what is the right regulatory 

framework for this sector, that we need to consider all things that 

have previously been on the table, and measure them against the 

baseline criteria——

Senator LAUTENBERG. Yes, well, not meaning to cut you short, 

but it is an important proposal, as are some others that are there. 

And I would hope that DHS would take a prompt and thorough 

look at these things, to give us their view on what we ought to be 

doing. 

Mr. Dunne, there is a significant difference between the figures 

that the EPA lists as facilities that need attention and DHS. EPA 

reports that there are 110 facilities where an explosion could harm 

a million people. And I am not sure I caught the nuance that you 

were trying to bring here. 

The focus is only perhaps on those places where a million people 

could be injured as a result of an accident or a terrorist attack, obviously? DHS reports that there are 300 facilities—far larger number—where an explosion could harm about 50,000 people. 

Now, where do you draw the line on these data? Are we concerned about quantity of those at risk? Because I mean, if 500 people were to die from a chemical attack or an accident, we would 

be up in arms about it. We would be turning loose all of our faciliVerDate 0ct 09 2002 14:18 Dec 01, 2005 Jkt 021829 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 C:\DOCS\21829.TXT SAFFAIRS PsN: PAT
21

ties to do something with that. What do you see is the explanation 

for the difference? 

Mr. DUNNE. Well, I am not too sure we really differ. The 123, or 

now 110—may be somewhat out of context. It is a hypothetical, analytical modeling tool that was used to develop that. It isn’t saying, 

in effect, that if you happen to be one of a million people around 

a facility that you are going to be affected. It is potentially that. 

And it shouldn’t be taken out of that context. 

I think what DHS has done, as they have gotten sophisticated 

and learned more and more about the tools is try to isolate those 

facilities that are considered the most vulnerable, based on what 

is there in terms of the quantity and the type of chemical, and also 

in terms of the surrounding area in terms of the population. I think 

there are some similarities, and there obviously is some overlap. 

Senator LAUTENBERG. But Mr. Dunne, we are dealing here with 

huge numbers of people. And whether the effect is kind of peripheral or whether it is lethal, I mean, we have an obligation to do 

what we can. 

I consider—and I have said this publicly many times—that the 

front in this war that we are in in Iraq extends all the way across 

America. I believe that is where the front is. And we do not spend 

anywhere near the amount of money protecting our citizens on 

American soil that we do trying to help Iraq correct its problems 

and to protect our service people over there. 

So I am not sure where the defining line is that says, ‘‘Well, this 

deserves attention.’’ I think they all deserve attention. I am author 

of the Right-To-Know law. The Right-To-Know law carries virtually 

no penalties; but it has had enormous conformity by private industry. And we have reduced toxic emissions by 40 percent across this 

country as a result of that. 

But this goes way beyond that kind of thing. And I think it is 

agreed, is it not—and I ask both you and Mr. Stephan—that sanctions are in order, in order to get people to conform to the need to 

alert the public to what it is that they are carrying, what the possibility is if there is an accident or an attack. 

Aren’t we at a different point in time, in terms of trying to split 

hairs about whether or not 50,000 people is a reasonable size market to protect? Or might it be 500 people? The million-person number is so devastating it is almost unimaginable, but New Jersey 

has a facility identified as a place where 12 million people could 

lose their lives. But to any one of those families, or to someone who 

lost someone in Oklahoma, the devastation is beyond comprehension. So where do we go with these numbers that you have put out 

here? 

Mr. DUNNE. I am not too sure what you mean, where we are 

going. We have 15,000 facilities and——

Senator LAUTENBERG. Well, I will tell you where we are going. 

I will tell you directly where we go. There is a huge difference in 

the numbers between the two parties. I would like you to explain, 

tell me why their’s is wrong. Their’s says we have to talk about 300 

facilities; and as I hear you, well, it is not 123, it is 110. Just explain your numbers a little more. 

22

Mr. DUNNE. Well, I do not think that we have a different approach. I am not too sure our numbers are different. A 123 to 110 

is just a fact, in terms of what we receive in reports. 

Senator LAUTENBERG. They are saying 300. 

Mr. DUNNE. Well, ours was not based on anything more than the 

population around facilities or covered under the RMP. And I think 

what they are talking about is completely different in terms of how 

you size a program up in terms of where you go first in terms of 

vulnerability that creates potentially the biggest problem. I do not 

think there is any difference, Senator. 

Senator LAUTENBERG. Help me, Colonel Stephan. Do you see any 

difference between your 300 identified facilities where an explosion 

could harm about 50,000 people, and EPA’s, where they say there 

are 110 facilities where an explosion could harm a million people? 

Are we saying that 50 is a good place to start, or do we only look 

at places where a million people could be harmed? 

Mr. STEPHAN. No, sir. Well, every human life is important, but 

numbers mean different things to different people. What the EPA 

numbers mean to them is, based upon this point on the map that 

represents the geographic center of this production site, for example, based upon the most toxic chemical onboard that site at a 

threshold quantity, there is a ring drawn around that site ‘‘X’’-number of miles out from the center. 

What that 12 million figure represents, not 12 million deaths; 12 

million people that could somehow be affected, depending on wind 

direction, wind speed, atmospheric factors that have to be taken 

into account from a safety or planning perspective. The State-level 

councils, the local-level councils, the emergency responder awareness, the safety issues, the gearage, all of that factors into that. 

And that is what they have to be concerned about. 

What I have to be concerned about is taking those baseline numbers that we get from the EPA—and we agree on the baseline numbers—and I have got to drill down further, because 12 million people are not going to die if that one chemical plant is affected. We 

have to use a more sophisticated approach, based on plume modeling, wind direction, wind speed, atmospheric conditions, so on 

and so forth, to drill down on that aggregate number of 12 million. 

And when you do that, you get to a significantly less percentage 

of the population that would result in actual fatalities or be affected in some way, demonstrating visible signs of being affected by 

the chemical agent. 

So we worry about that, in terms of our risk-based metrics, on 

where to drill down, how to come up with the numbers that we 

have. They have to be more over-arching in nature, because everybody inside that circle—the law enforcement guys, the firemen, the 

emergency management folks—have to go through training awareness and be equipped so that they can respond in case the wind 

just happens to unluckily blow in their direction on that day. 

Senator LAUTENBERG. Madam Chairman, I hope the record will 

be kept open for questions, because we obviously have disparity 

here that leaves me, at least, kind of scratching my head and saying, ‘‘I don’t get it.’’ Thank you. 

Chairman COLLINS. Thank you, Senator. Actually, with Senator 

Akaka’s indulgence, I was going to ask Colonel Stephan to conclude 

23

the answer to my question, which speaks to this very issue. But if 

the Senator is on a tight time frame, then I will go directly to you. 

Senator AKAKA. I would appreciate that. 

Chairman COLLINS. Go right ahead, Senator. Then we will come 

back to my question. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Madam Chairman. I 

thank you so much for holding this hearing. You all know that this 

follows the recent chemical security hearing we have had. At that 

hearing, we learned that the United States has a great deal of 

work ahead to strengthen and ensure the security of the chemical 

sector in the post-September 11 environment. 

And all the witnesses that testified, testified that the voluntary 

efforts to secure the chemical industry are insufficient, and so we 

are having this hearing. And they advocated at that time for more 

Federal regulation of the chemical industry. 

I would like to welcome our witnesses. I had another commitment, Madam Chairman, this morning, and I regret that I was not 

able to hear the witnesses’ testimony. And I ask that my full statement be placed in the record. 

Chairman COLLINS. Without objection. 

[The prepared statement of Senator Akaka follows:]

PREPARED STATEMENT OF SENATOR AKAKA 

Madam Chairman, thank you for holding this hearing. I would like to add my welcome to our distinguished witnesses from the Department of Homeland Security 

(DHS) and the Environmental Protection Agency (EPA). 

At our recent chemical security hearing, we learned that the United States has 

a great deal of work ahead to strengthen and ensure the security of the chemical 

sector in the post-September 11 environment. All the witnesses at the last hearing 

testified that the current, voluntary efforts to secure the chemical industry are insufficient. They advocated for more Federal regulation of the chemical industry. 

Given the potential economic consequences and lives that could be lost as a result 

of an attack on our chemical facilities, I believe that we need to consider giving DHS 

greater authority to regulate the chemical industry. However, we must move forward carefully and ensure that the Department is given the necessary tools to undertake this new challenge. 

I am concerned that the proposals from the last hearing lacked adequate analysis 

of the human, financial, and organizational resources required to regulate an industry. Dr. Richard Falkenrath, The Brookings Institution, proposed that DHS be responsible for promulgating regulations, certifying companies, verifying the certification, enforcing compliance, and offering an appeals process. If this were to occur, 

how would the Department be reorganized and how many additional personnel 

would be required? 

It was suggested by Dr. Stephen Flynn, Council on Foreign Relations, that the 

Department use contractors to execute many of these new responsibilities. As a 

longstanding supporter of the Federal civil service, this suggestion troubles me. His 

proposal would contribute to a growing trend at DHS: More and more critical positions being contracted out, while the government is losing the opportunity to develop institutional knowledge and a cadre of skilled and dedicated employees. For 

the same reason that passenger and baggage screening was federalized after September 11, I question whether it is advisable to have contractors enforcing Federal 

regulations in the chemical sector. 

Furthermore, the EPA has a special expertise in the chemical sector from which 

DHS should draw upon. Some fear greater EPA involvement in chemical security 

regulation could lead to more environmental and safety scrutiny of the chemical industry. But I think it is wrong to preclude the involvement of EPA. 

For these reasons, I urge my colleagues on this Committee, many of whom have 

spent the past few years committed to building and improving DHS, to examine 

thoroughly how regulation will be implemented and what would be required of DHS. 

24

Madam Chairman, I welcome this opportunity to explore these issues in greater 

detail. I look forward to the testimony of our witnesses.

Senator AKAKA. Under Secretary Stephan, I would like to follow 

up on an issue raised by Senator Collins in her opening statement. 

At the April 27 hearing, two of the witnesses proposed granting 

DHS extensive chemical security regulatory authority that would 

include promulgating regulations, certifying facilities, verifying the 

certification, and enforcing compliance. 

Under Secretary Stephan, I understand that DHS has not specifically asked for such authority. However, if Congress mandates 

that DHS regulate chemical security in the manner I just described, what financial and human resources will the Department 

need? And in answering this, I ask you to be as specific as possible. 

Mr. STEPHAN. Yes, sir. Thank you for that question. I believe 

that I do not have good numbers associated with a sweeping, overarching, very tightly restrictive, all-encompassing regulatory framework. I do not have precise numbers for you, because that has not 

been our approach up to this point. I just know those numbers 

would be very significant. 

That is one of the reasons we are coming to Congress, to work 

in partnership, to look at assembling a regulatory framework that 

is risk-based, so that we do not have to apply the exact same 

standards across the board pertinent to every facility, with no other 

consideration. 

What we have to do is implement a regime, I think, that is riskbased, is measured, gets the effectiveness and the efficiencies that 

we are looking for in a measurable, reportable manner; that treats 

individual facilities based on risk differently, based upon a common 

approach; but to allow a menu of options based on standards that 

we would promulgate and allow the facility owners and operators 

different ways to get at that problem. 

In this kind of regime, I think we could perform the regulatory 

function without a great influx of new people, new government employees, if we adopt this measured approach. We are adopting the 

measured approach not because the numbers are bigger or smaller 

in terms of government employees, but we think it is the right approach. The right approach, coincidentally, I think will drive us to 

a smaller number of Federal employees as a requirement. 

Senator AKAKA. Mr. Secretary, to answer my question specifically, I would ask you to provide us with those numbers that you 

do not have now, for the record. 

Mr. STEPHAN. Yes, sir. We will go back and provide you an answer. 

Senator AKAKA. Secretary, if DHS is given regulatory authority 

over chemical security, should the regulating office be part of the 

Office of Infrastructure Protection, or separate? And if separate, do 

you think its director should be Senate confirmed? 

Mr. STEPHAN. Well, that is an interesting set of questions, there. 

So let me answer that in this way. I think that the responsibility 

for the critical infrastructure protection rests within the information analysis and infrastructure protection component of the Department. I believe that that responsibility should squarely rest 

within that component. 

25

Due to the wisdom of the people that came together to create the 

Homeland Security Act, my position is not Senate confirmable. And 

I would not like to have anyone working for me that has a more 

stringent requirement that do not have to meet. So that would be 

my answer back on that point. 

Senator AKAKA. Secretary, I am concerned about a trend at DHS 

of relying on private contractors to fill critical functions within the 

Department. For example, I understand that the new domestic Nuclear Detection Office will be run almost entirely by contractors. 

My question to you is, would you expect chemical security regulation to be executed by career employees, or contractors? And what 

role would you see contractors playing? 

Mr. STEPHAN. Sir, in terms of the manpower and the subject 

matter expertise necessary to execute that mission, absolutely no 

exceptions, the program management responsibilities should rest 

with a government employee, under all circumstances. That is the 

way the Federal Government operates. That is the way we assure 

accountability and measurable progress across what we do. 

Not to say that there need to be integrated into this mix appropriately the subject matter expertise that we would need to in 

order to be able to have on our staff the ability to have vulnerability folks, consequence folks, threat-focused individuals, that 

may or may not exist within the Federal family or the government 

family at this point. 

Any use of contractors that we would employ would involve tight 

supervisory controls levied upon them by Federal Government employees. 

Senator AKAKA. One reason I ask that is that it is critical that 

we are able to keep developments and new ideas within the Federal level. And if we had contractors do that, it doesn’t really—it 

is not administered by the Federal Government. 

Deputy Administrator Dunne, the EPA has special expertise in 

the chemical industry, if DHS assumes the responsibility for chemical security regulation, what role do you think EPA should play? 

Mr. DUNNE. Well, I think we would continue in a support role. 

And I appreciate the fact that I think you recognize that you can 

only have one department or agency in charge of this effort. I think 

splitting authorities would be the wrong thing to do. 

And we would provide whatever assistance that is necessary, 

similarly to the way we do in responding to emergencies when 

there is a presidential declaration. We respond on a regular basis 

with whom we have a long working relationship, with FEMA. And 

we would continue to support Bob and his people in terms of any 

efforts in terms of our expertise, which is really in the inside-thegate chemical side of the business; not outside-the-gate. We are not 

security experts. 

Senator AKAKA. Does DHS plan to involve EPA, do you think, in 

regulation of the chemical industry? 

Mr. STEPHAN. The ownership, I believe, of the regulatory authorities needs to be squarely within one department. That would be the 

Department of Homeland Security. That is not to say that we 

would not need a partnership with the EPA. Because as much as 

people would like to, you can’t completely drive a wedge between 

safety and security concerns. They have to be woven together. 

26

And I think we have a great partnership with the EPA. We 

would like to rely upon the solid baseline and safety that they have 

set up through their regulatory structure over the years, and be a 

partner with them to solve this problem. But clearly, the authority 

for security for the chemical sector needs to reside with the Department of Homeland Security. 

Senator AKAKA. Thank you very much for your responses. 

Madam Chairman, I thank you for being so generous and letting 

me go forward. And I will submit my other questions for the record. 

Chairman COLLINS. Thank you very much, Senator. 

Colonel, I want to get back to the numbers issue. I am very 

aware that the EPA uses a different methodology than DHS. But 

as Senator Lautenberg’s questions, and mine, have shown, there is 

confusion over how we get from the 15,000 high-risk facilities identified by the EPA to the 3,400 facilities identified by DHS. 

And I think because many of the legislative proposals that we 

are going to consider are likely to have a tiered approach to regulation, it is important to understand how we define the highest-risk 

facilities. So, if you could, explain to the Committee how DHS took 

the 15,000 RMP facilities list, with which it is my understanding 

you started, and narrowed it down to the 3,400 facilities. I am not 

critical of the narrowing down. I just need to understand it. 

Mr. STEPHAN. And let me provide to you as much clarity as a political science major can provide in the math issue area, here. 

Working from that initial list of 15,000 that has been the baseline that both the EPA and the Department of Homeland Security 

have used, did an initial chop on that list. From that initial chop, 

approximately 2,000 entries were struck because they were redundant. For example, one particular facility on the list actually appeared twice; once for its fluorine content on-site, and once for its 

sulphur dioxide content. So we had several facilities that were listed several times, and we boiled that down simply by eliminating 

the redundant entries. 

Then, another 3,000, generally, were struck from the list because 

they were no longer RMP-applicable, under the EPA meaning of 

that term. Specifically, they had gone out of business; they were a 

tenant plant on a larger site whose host organism or entity had 

been reported in as part of the reporting requirements; they were 

part of a joint venture and both partners reported them accidentally; or they had reduced chemical holdings on-site below the 

threshold required by the EPA. 

So as we are now winnowing down, based upon redundancies and 

based on facilities that no longer met the EPA requirement, we 

come out through another winnowing window. 

There were another 8,000 on the list of these sites that we believe are under somebody else’s existing regulatory framework with 

the security component. For example, 4,000 water facilities that are 

under, in the President’s structural organization of the CIP mission 

area, the EPA’s responsibility, using the Bioterrorism Act, the Safe 

Drinking Water Act; allows them authorities to demand vulnerability assessments, takes some protective measures, so on and so 

forth. 

When we boiled all of those out, that got us down to about the 

3,400 list of things that we consider to be high risk, that fell within 

27

no one else’s regulatory purview, so that we could drill down and 

focus on those as kind of a nexus of our initial concern. 

As we work with you to build this regulatory framework, the 

very first thing we are going to have to do is come to an adequate 

agreed-upon definition of what the chemical sector actually is; because without that, we will be going all over the place. Because I 

think—there are actually, if you put the whole world of anything 

that has a bottle of chemicals on it somewhere in the United States 

of America, I think there are about 66,000 of those things out 

there. 

So we have to be very careful that we drill down; figure out what 

needs to be inside this regime, what is adequately being taken care 

of under another regulatory framework, as long as that framework 

is risk-based. So we are going to have to work up-front to build in 

the definitional pieces of this. 

Chairman COLLINS. Thank you. That explanation was very clear 

and very helpful. There is another numbers issue on which I want 

to make sure we have clarity. In your testimony, you referred to 

the 20 percent gap. These are chemical facilities that are not adhering to voluntary industry codes, and we do not know much 

about them as far as their security. But it is my understanding 

that you are talking about 20 percent of the high-risk pool. Is that 

correct? 

Mr. STEPHAN. That is correct. 

Chairman COLLINS. And this is an important point, because it is 

my understanding that out of the 15,000 high-risk facilities that 

the EPA has identified, only about 1,000 facilities adhere to the 

voluntary codes. Is that accurate? 

Mr. STEPHAN. I would have to defer to the EPA on that question. 

Chairman COLLINS. Mr. Dunne. 

Mr. DUNNE. I think it is a little bit more than 1,000; but correct, 

about 7 or 8 percent, I think. But there are other associations that 

have similar types of codes, so I would think that maybe it is a couple of thousand out of the 15,000 that are following some kind of 

security measure right now. 

Chairman COLLINS. Thank you. That is helpful. Mr. Dunne, at 

the Committee’s last hearing, Carolyn Merritt, who chairs the U.S. 

Chemical Safety and Hazard Investigation Board, testified that, 

‘‘Many incidents that the Chemical Safety Board has investigated 

reveal serious gaps in how well companies, emergency responders, 

government authorities, and the public are prepared for a major 

chemical release. These gaps in preparedness leave Americans vulnerable.’’ She went on to say that, ‘‘In her judgment, many communities are not even ready for a small chemical release.’’ Do you 

agree with that assessment? 

Mr. DUNNE. Well, I do not know how many cases the lady has 

really looked at. They only investigate a handful of cases after 

there is an accident. I am not too sure how you draw that conclusion. 

Madam Chairman, there are established by law, under the 

Emergency Planning and Community Right To Know Act, over 

3,900 local emergency planning committees. And they are set up by 

States. They are not mandated by the Federal Government. States 

have got them. And they range from one LEPC a State in a couple 

28

of cases, to hundreds in other States. So you have got a real split 

in terms of how this approach is taken by the States. 

We did a survey back in 1999 to see how many of them were 

really active, out of the 3,900. And the conclusion, I believe, was 

about 59 to 60 percent are active. And ‘‘active’’ means a variety of 

things. We can take you down to areas in the country where there 

are processing and refineries right there, and you will see LEPCs 

that are getting money from the industry people to staff and have 

appropriate administrative support; to people in other areas of the 

country where an LEPC may be meeting once a year and having 

discussions. 

I think, in terms of the emergency response community, they are 

getting better and better. There is an enormous effort and a large 

amount of money that has gone into training and exercises and acquiring protection. 

Are we there? Nowhere near it, I suspect. And I think by and 

large the larger companies are fairly well prepared, from what we 

can understand, at least in the safety, and not talking to the security. And I am sure there are small- or medium-sized firms that are 

the major concern. 

So I can’t really respond directly to her statement, but I can say 

that I am sure we are not well prepared across the board all the 

time. 

Chairman COLLINS. Let’s talk about some specifics. I understand 

that the Administration wants to work with this Committee, and 

I very much appreciate that commitment. But let me start by asking you about a set of principles that the Administration developed 

in February 2003 to apply to chemical security legislation. 

One principle that the Administration endorsed at that time was 

to require an assessment of each facility’s vulnerability to various 

modes of attack, and strategies to counter the vulnerabilities identified. I asked you a question related to this at the beginning of the 

hearing. Does that sound to you like a reasonable requirement to 

include in legislation? 

Mr. STEPHAN. Madam Chairman—and again, I will have to 

apologize, because I do not have any details that have been vetted 

through my policy framework and approved by Secretary Chertoff 

to bring to you today; but we are working on those in accelerated 

manner. 

As I discussed, however, earlier, there is just a certain set of 

things that would be an appropriate part, or an appropriate portion 

of any framework dealing with security from a regulatory perspective. People have got to be doing some kind of sanctioned approach 

to risk assessments. Some people have got to be taking action 

based upon those risk assessments, implementing measures that 

are measurable. And there has to be a system in place to develop 

an auditing or a tracking of all this, and then a compliance piece 

to all of it. 

So I think if I were speaking about the chemical sector or any 

other sector, to get at a regulatory structure it has got to have 

those key components embedded somewhere, somehow. The devil is 

in the details, as you pointed out earlier. 

Chairman COLLINS. But surely, you can’t get to the audit and 

compliance areas unless you have some sort of baseline requireVerDate 0ct 09 2002 14:18 Dec 01, 2005 Jkt 021829 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 C:\DOCS\21829.TXT SAFFAIRS PsN: PAT
29

ment for a vulnerability assessment and for the development of 

strategies to counter the vulnerabilities. I mean, that seems to me 

to be so basic to the legislation that I think it is safe for you to 

say ‘‘Yes.’’ [Laughter.] 

Mr. STEPHAN. Safety is always a concern. But again, I have no 

specific pieces of the framework. I can’t imagine a framework that 

did not include assessing——

Chairman COLLINS. I can’t, either. 

Mr. DUNNE [continuing]. Or not necessarily focused on vulnerability, but risk; because we have to take into account consequences, threat, and vulnerabilities, as part of an overall riskbased approach. 

Chairman COLLINS. Well, let me turn to another possible framework, because we are searching for the right way to do this. Mr. 

Dunne, for example, you brought up the interesting point that we 

do not want to provide a road map to the terrorists. I think that 

is an excellent point that we are going to have to keep in mind. 

Secretary Chertoff has indicated that the framework that was established under the Maritime Transportation Security Act has 

proven highly successful. The MTSA requires the Coast Guard to 

promulgate performance-based regulations and to form area maritime security committees, to designate a Federal maritime security 

coordinator, to complete facility and area maritime security plans, 

compile a list of critical infrastructure in our ports. 

Is that a possible framework for us to look to when it comes to 

regulating chemical security, in your view? 

Mr. STEPHAN. Yes. And that is absolutely one of the frameworks 

that we are going to consider, because we do think that particular 

way of doing business has achieved a certain level of success. We 

just have to, again, map it against whatever these criteria end up 

being that we can mutually agree upon, and see if there are any 

deltas between the NTSA approach and whatever the overall more 

encompassing approach would be. 

The second bit of interesting news there, though, is the Coast 

Guard appears to have achieved an incredible amount of efficiency 

and acceptance as a regulator. And we would love to model the 

Coast Guard’s approach to dealing with the private sector yet getting the job done efficiently and effectively. So we want to actually 

sit down with them, and we have in a preliminary sort of way, to 

figure out how they have been able to crack that code. 

Chairman COLLINS. I think the Coast Guard is an ideal model 

for us to take a look at, and I certainly agree with you on the acceptance and the respect that the public has in dealing with the 

Coast Guard on a lot of port security and maritime interdiction 

issues as well. 

I want to turn to the buffer zone program. It is ironic to me that 

you testified today, as the Secretary frequently has, that we should 

have a completely risk-based approach to funding, but that is not 

really what the buffer zone protection program funding is based on. 

Isn’t it a flat $50,000, with only a 15 percent variance up or down, 

regardless of what the site is? 

Mr. STEPHAN. Yes, ma’am, that is correct. And right now, the 

buffer zone protection plan scheme of maneuver does have a risk 

component to it; in that it is targeted against what we consider to 

30

be the top 272 highest-risk facilities in the chemical sector. So that 

portion of it—in terms of drilling down to who would be eligible, 

who we are going to work with, who we think needs this level of 

focus—that is completely risk-based. 

This first year of its implementation, we basically did the best 

we could, in terms of trying to come up with some equitable way 

to push some quality improvements and capability out the door. I 

think, based upon not having the risk management tool that we 

now are ready to deploy across the sector, that is the best foot forward we could have put a year ago when we came up—or over a 

year ago when we came up with the idea for this program. 

I think, beginning with the next budget cycle, you will be able 

to see from us a much more measured risk-based approach, simply 

because the technology has now caught up with us. And we want 

to fully employ that in terms of determining criticality against 

which we will base our decisions about where to push the buffer 

zone protection plan grant monies. 

Chairman COLLINS. Mr. Dunne, you gave us one caution as we 

draft this legislation, about spelling out too many requirements 

that might result in plans that were available to the public and 

could be used to cause us harm, to be turned against us. Do you 

have any other cautions for this Committee, as we draft this legislation? 

Mr. DUNNE. Well, when you referred to the principle, that was 

interesting. I would agree that, where necessary, assessments have 

to be done and a plan has got to be done, and it has got to be able 

to be checked. We had discussions back 3 years ago that, if this either was done through our own regulation or we were going to go 

by law, that we were of the belief that the plans and the assessments and the vulnerability analysis should not leave that facility; 

should stay with the unit there. 

Now, the Water Bioterrorism Act does have the water plans coming to EPA. It is locked; it is secured. And that has got very limited 

access. Law enforcement and some of the DHS people have some 

access to it, and it is a very limited number of people. 

I think on the security side, in terms of what is being done inside 

that facility, it can be very dangerous unless we protect those 

sources. So I would think that doing the analysis and doing the 

plans on the recovery is really necessary, but limiting the access 

to that information is really necessary. 

Chairman COLLINS. Is that in conflict with the community rightto-know law? 

Mr. DUNNE. No, actually, the risk management plans under Section 112(r) are available to the public. In fact, we had a long, spirited debate within the Agency whether or not the executive summaries ought to be released. After September 11, we decided to 

withhold those. 

We recently have just let those go. But in terms of consequences, 

they are only available in reading rooms in 50 areas, either EPA’s 

offices or the FBI offices. And they are not visited that often. Mainly, I was told today, they are visited more by the press. And they 

are paper copies only, and you can only go in and look at one facility at a time, and there is a limited number of times you can. 

31

And so we have tried to restrict that information. And actually, 

there was a law passed in 1999 that led us to it. This is not something that EPA just dreamt up. There was a security law, and the 

acronym is ‘‘SFRA.’’ And we do take a look at whether or not—if 

this got into the wrong hands, could they create harm. And that 

is why we make sure that we adhere to that principle that was put 

in the act in 1999. 

Chairman COLLINS. It seems to me that there is a potential tension here because, on the one hand, you certainly do not want to 

provide terrorists with information on how to attack a facility and 

what its vulnerabilities are; on the other hand, you do want local 

law enforcement and emergency response officials to understand 

the vulnerabilities in order to improve their preparedness. How do 

we strike the right balance on that? 

Mr. DUNNE. Well, no, I do not think there is a conflict in that. 

Actually, under the safety plans, that information is available. Law 

enforcement, fire departments, and other people have to prepare 

outside the gate for emergency response. And that is why the Congress had the States come up with local emergency planning committees. So I do not think there is a conflict. 

There are certain conditions within a facility that, if it became 

known to a person who wanted to create harm, could create havoc 

for us. So I make the distinction in terms of keeping those plans 

inside the gate. But I think the law enforcement community, fire 

people, and the emergency response people should have access, in 

terms of what the vulnerabilities are and what type of activities 

they are going to have to undertake to plan and prepare for a response. 

Chairman COLLINS. Colonel, any advice to us, any cautions, as 

we proceed to draft legislation? 

Mr. STEPHAN. Ma’am, again, just to restate a few key points, we 

are really looking to do this in a fair and balanced, yet effective 

manner. Because this sector is vitally important to the Nation in 

terms of what it represents to our economy, what it represents to 

the daily lives of Americans across the country. 

By that same token, it is a very important security risk, not only 

because of the economic consequences involved, but the public 

health and safety dimension of all this. That drives us to it. 

We think now we are grown up enough, we are mature enough 

in both our knowledge base, the stuff that the private sector has 

done, and the technologies that we have to use to guide a risk assessment process. Let’s work together to make sure we put the 

right structure in place, so that we are not crippling—or helping 

al Qaeda and the like by crippling a vital part of our economy 

while trying to secure it. 

I think there is a way we can take a measured, balanced approach so that we can close the remaining gaps for that 20 percent 

or so capacity we are worried about; make sure we can sustain the 

good efforts that have been done by industry voluntarily over time; 

and to make sure that those voluntary efforts are achieving the effects we want to see. 

And I think there is a way to do that, and we have some really 

smart, gifted, talented people that will help us on our end put 

those principles in motion. And we want to do it on an accelerated 

32

track through our policy process, and sit down and work with you 

to see what this means as quickly as we can. 

Chairman COLLINS. Thank you. I want to thank you both for 

your testimony today. We are on an accelerated time-frame for 

completing this legislation. I intend to hold additional hearings, to 

hear from industry groups, homeland security experts, environmental groups, and others that have an interest in this area. My 

hope then is to use the August recess to complete the drafting of 

a bill, and then introduce it—I hope, with bipartisan support—in 

September. 

I tell you that time-frame because we will need the Administration’s assistance and guidance and input very quickly. I am convinced that legislation is needed. I am very pleased to hear the Administration endorse a legislative goal. But we need your help on 

specifics. We have not talked much about what the legislation 

should contain today. 

So I look forward to continuing our dialogue and to working with 

you on an expedited basis. I want to thank you for your help today. 

This hearing record will remain open for 15 days. I also want to 

thank my staff for all of their work on this important issue. The 

Committee hearing is now adjourned. 

[Whereupon at 12:06 p.m., the Committee was adjourned.] 

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A P P E N D I X 

PREPARED STATEMENT OF SENATOR VOINOVICH 

Chairman Collins, thank you for holding this hearing today. The chemical industry is a critical component of our Nation’s infrastructure. I complement your attention to the security of this industry and I look forward to working with the Members 

of the Committee, the Department of Homeland Security, and the Stakeholder community to ensure that our Nation’s chemical sector is secure from the threat of terrorist attacks. 

As I have previously noted, the chemical industry contributes to our high quality 

of life, whether it be enhanced crop production, improved water chlorination, effective household cleaners or advanced life-saving medications. However, these benefits 

do not come without risk. 

During the Committee’s first chemical security hearing on April 27, we heard 

alarming statistics that warned of a devastating loss of life in the event of a terrorist attack against a major chemical facility. Depending on the severity of the attack, the statistics ranged from 10,000 to an unfathomable 2.4 million casualties. 

Today, we will hear from both the Environment Protection Agency (EPA) and the 

Department of Homeland Security (DHS). I understand that, since assuming jurisdiction of chemical industry security, DHS has made significant modifications to 

both the method of risk assessment and the strategy for prevention and protection 

from terrorist attacks. I look forward to obtaining the Department’s risk assessment 

and learning the actions it is taking to mitigate our vulnerabilities. 

However, I believe that the Federal Government can not protect against every 

threat. Therefore, I want to reiterate my support for a balanced approach between 

self-regulation by industry and more proactive Federal action. Industry leaders, like 

the American Chemistry Council, should be commended for building a strong foundation for chemical safety. It is my hope that the significant safety measures developed by industry will be further built upon and incorporated into our overall chemical security efforts. 

As we further explore this issue, we must be governed by four guiding principles:

• First, efforts to enhance the security of our facilities should be sharply focused on prevention, protection, and consequence management of potential 

terrorist attacks;

• Second, Federal action to address chemical vulnerabilities must not be burdened with extraneous issues that are strictly environmental in nature;

• Third, critical information must be protected from unnecessary public disclosure, providing it only to responsible government authorities that need to 

have access to such information; and

• Fourth, Federal action should adhere to a comprehensive cost-benefit analysis, not placing industry at a competitive disadvantage.

In Ohio, the chemical industry directly employs 48,900 people: The impact of 

these jobs reverberates throughout Ohio, as one job in the chemical industry creates 

another 6.2 jobs for the State’s economy. 

The chemical industry is experiencing economic hardship as a result of rising natural gas costs. As we move forward in efforts to secure your chemical industry infrastructure from a terrorist attack, we must be certain that our efforts do not unwittingly create onerous Federal regulations that jeopardize the industry’s viability. 

As I have said before, it is not economically feasible to protect everything; doing 

so would bankrupt the Nation. Accordingly, all security enhancements including the 

security of our Nation’s chemical infrastructure should be based, first and foremost, 

on risk and vulnerability. 

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Chairman Collins, thank you for holding this hearing. I look forward to working 

with you on this issue. 

PREPARED STATEMENT OF SENATOR COLEMAN 

I want to thank Chairman Collins and Senator Lieberman for holding this important hearing to examine what the Federal Government is doing to secure chemical 

facilities to determine if more authority is needed. 

Securing the chemical sector is a complex undertaking but vital to protecting our 

homeland. There are literally thousands of chemical facilities that work with large 

quantities of hazardous materials throughout the country and they are located in 

or near major cities as well as rural areas. Minnesota has 20 chemical facilities that 

are considered to be ‘‘high-risk’’ on the National Asset Database and chemical security is of concern to the residents of Minnesota. 

As a result of the 1984 accident at the Union Carbide pesticide plant in Bhophal, 

India, Congress passed the Emergency Planning and Community Right-to-Know 

Act, or EPCRA, to reduce the risk to the general public associated with the accidental release of hazardous chemicals from chemical facilities by requiring State 

and local governments as well as facility operators to prepare plans for any accidental releases. In addition to the EPCRA, the Clean Air Act required chemical 

owners and operators to prepare Risk Management Plans, or RMPs to summarize 

the potential threat and worst-case scenario. 

The focus of these laws and requirements were enacted during a different period 

when the Federal Government was rightly concerned with the safety of these facilities. However, in the post-September 11 world, we have had to create new prevention and response plans that focus on intentional threats to our critical assets. Although there is not a uniform standard for securing chemical facilities, it is important to note that the Department of Homeland Security has taken steps to identify 

and prioritize the highest-risk chemical facilities and provide guidance to the owners 

and operators on increasing security in and around their facilities. The chemical industry has also made investments in traditional physical security measures and 

many facilities have voluntarily adopted the Responsible Care security recommendations of the American Chemistry Council. 

While these efforts have increased security, it is clear much work still remains 

in terms of securing the chemical sector. Instead of security being a cost of doing 

business—it needs to become a way of doing business. And as we move forward, it 

is crucial that Congress, the Administration and the industry work together to ensure that sufficient prevention and response plans are in place at our Nation’s 

chemical facilities. 

I look forward to hearing the testimony of our panelists about the state of security 

in the chemical sector and what additional authority may be necessary to maintain 

or increase that security.

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